A man living on Okanagan Indian Band (OKIB) land who refused to leave his home after an evacuation order was issued due the the 2021 White Rock Lake wildfire was taken to court by his landlord, who sought to have his lease terminated.
However, the B.C. Court of Appeal has agreed with the trial judge that the man and his spouse should be able to keep their lease.
Robin Gerow and his wife received an order to evacuate their property on Aug. 1, 2021 due to the wildfire. While Gerow's wife left, he defied the order by staying at their property, which is in a 600-lot subdivision held by Parker Cove Properties Limited.
On Aug. 13, OKIB chief Byron Louis sent a letter raising concerns about those who did not evacuate. The next day, Parker Cove Properties told residents by email that not complying with the evacuation order would be considered a breach of their sublease "and serious sanctions would follow." Gerow evacuated after he was served the letter by the RCMP on Aug. 14. He returned once during the evacuation period (which lasted until Sept. 4) to bring gas to his generator.
"Firefighters could not use water bombers and fire retardant on property if people remained in the evacuated area," the Appeals Court decision notes.
Parker Cove Properties went on to take Gerow and his wife to court, alleging multiple breaches of the lease agreement including the failure to follow the evacuation order. The company sought to have the lease terminated.
The trial judge decided that while Gerow breached his lease by refusing to evacuate, the breach was not severe enough to constitute a "fundamental breach" that would warrant the termination of his lease. Parker Cove was ordered to pay costs, and the trial judge dismissed Gerow''s request for special costs.
Parker Cove Properties appealed the trial judge's decision that a lease termination wasn't warranted. Meanwhile, the Gerows cross-appealed the cost order, saying the judge erred in dismissing their application for special costs.
The appeal judge upheld the trial judge's decision to allow the Gerows to keep their sublease, but said the judge did make an error in ordering costs, and reduced the costs Parker Cove Properties owes to the Gerows.
"In my view, the (trial) judge did not err in concluding that a fundamental breach of the subleases did not occur," the appeal judge wrote.
The appeal judge also dismissed Gerow's appeal of the decision not to award special costs.
